The stage is set Monday for another major legal showdown over President Donald Trump’s revised travel ban executive order as the 9th Circuit Court of Appeals hears arguments in Seattle on whether to keep in place an injunction against key parts of that directive.
What’s less well known is that for nearly a year and a half, the 9th Circuit has already been wrestling with one of the core issues in the travel ban dispute: whether and when it’s legal for the government to target Muslims on the basis of their religion.
In December 2015, a three-judge panel heard arguments on a lawsuit filed by the American Civil Liberties Union, charging that the federal government violated the rights of Southern California Muslims by repeatedly sending an undercover FBI informant into mosques to conduct what critics allege was “dragnet” surveillance against worshippers.
More than 17 months later, no ruling has been issued.
“The question of whether you can discriminate on the basis of religion and whether religion can form any part of what makes you suspicious is present in both cases,” said Ahilan Arulanantham, legal director of the ACLU’s southern California chapter. “In the Muslim ban cases, you’ve got a whole lot of statements saying the goal is to do a Muslim ban. … In our case, you don’t have a statement like that, but you have a policy that says being Muslim can be part of what makes you suspicious.”
Because of the precedent-setting nature of appeals court rulings, the timing of the release of the long-awaited decision in the Southern California suit could impact the 9th Circuit’s travel ban case. If the ruling emerges in the coming weeks, it would amount to a precedent the three-judge panel considering the travel ban would be obliged to follow where it’s relevant.
At least one jurist must be well aware of the two cases: Judge Ronald Gould, who is assigned to both the mosque informant and travel ban suits.
Like all three judges slated to hear argument Monday on Trump’s second travel ban order, Gould is an appointee of President Bill Clinton. Also on the travel ban 2.0 panel: Judges Michael Daly Hawkins and Richard Paez.
The other two judges on the mosque surveillance suit are Marsha Berzon and George Steeh, a Michigan district court judge assigned to the appeal. Both are also Clinton appointees.
Trump issued his second travel ban order in March after his first one — issued just seven days after he was sworn in — was essentially halted by injunctions issued by several judges. A 9th Circuit panel turned down Trump’s initial effort to reinstate the ban, prompting his team to go back to the drawing board.
The new order shrinks the list of countries affected by a 90-day visa ban from seven to six, removing Iraq but keeping the majority-Muslim nations of Iran, Libya, Somalia, Sudan, Syria and Yemen. Those with existing visas are spared in the new order, at least until those visas expire, but the new directive maintains a 120-day halt for refugee admissions from across the globe.
Hours before the new directive was set to take effect, those key provisions were halted by a judge in Hawaii. The visa ban was also blocked by a judge in Maryland. The Richmond-based 4th Circuit heard arguments on the issue last week and could rule at any time.
The dispute in the mosque surveillance suit dates back to President George W. Bush’s administration and an effort the FBI reportedly labeled “Operation Flex. “ It involved the use of a troubled informant, Craig Monteilh, to pose as Islamic convert “Farouk Aziz” and gather information on the activities of attendees of certain mosques in Orange County and Los Angeles.
Monteilh, a felon on probation for passing bad checks, eventually had a falling out with the FBI, sued the agency and went public with his story that he not only recorded conversations he had with many mosque-goers but often left his key chain in the mosque in the hope of picking up others’ conversations.
When the ACLU brought a class action lawsuit in 2011, the Justice Department — now under President Barack Obama — invoked the state secrets privilege as part of a bid to shut down the case. A judge in Santa Ana eventually issued a muddled ruling, dismissing claims against the federal government but allowing the suit to proceed against FBI and local law enforcement agents. Both sides appealed.
Trump’s Justice Department hasn’t had much occasion to address the mosque snooping case because it’s been pending since long before the new president took office, but candidate Trump made it clear on the campaign trail that he’s a fan of the government keeping close watch on mosques.
"I want surveillance of certain mosques, OK? …We’ve had it before and we’ll have it again," Trump said after deadly terrorist attacks in Paris in November 2015.
During the oral arguments in February on Trump’s first travel ban, one of the judges who heard the case suggested it might not be completely illegitimate for the government to target people on the basis of their religion.
“The concern for terrorism with those connected with radical Islamic sects is kind of hard to deny,” said Judge Richard Clifton, a George W. Bush appointee.
However, Clifton eventually joined a unanimous, three-judge ruling declining to allow Trump to reinstate his first executive order. The Trump administration dropped that appeal before a final ruling was issued.
The Trump administration looks like it will face an uphill battle from the panel set to hear arguments Monday on the revised travel ban. Paez is considered one of the 9th Circuit’s most liberal judges, while Hawkins and Gould are considered more moderate.
However, none of the five Republican appointed 9th Circuit judges who used an unusual dissent mechanism to signal that they believed Trump’s first travel ban order was legal was picked for the randomly-selected panel hearing the new appeal.
Meanwhile, Arulanantham is wondering what’s happening with the appeal his team filed in the mosque surveillance case more than four years ago. That said, he still feels it’s a real possibility the decision could emerge soon and have an impact on the much higher-profile travel ban fight.
“The length of time that goes by makes you feel sometimes like it may never be coming,” he said. “But every day longer that it takes — on some level — makes it more likely than the day before, right?”